What are geographical indications? What do they mean for post-Brexit UK?

People’s views of geographical indications range from cherishing them as precious cultural heritage and commercial property, to annoyance and scorn. They are complicated. Every argument has a counter-argument

“How was your Cornish pasty sir? And your lamb, madam? It was New Zealand lamb. Excellent. Would you like some dessert? A cheese plate? We have a new Tiroler Bergkäse from Austria. I also recommend a fine French or Swiss Gruyère. And we have a lovely Caerphilly. Or our chef’s favourite mature Cheddar. A selection? Of course. And to go with that? Would you like to stay with your Amarone della Valpolicella? An Armagnac? A perfect choice. And sir? More Evian. Coming right up.”
Which of these are geographical indications? Answer at the end

What are geographical indications (GIs)?
What do they apply to?
Are they always place names?
How do they relate to rules of origin?
Why protect them?
What does protection mean?
How much protection?

How are geographical indications protected?
What does the UK face with the EU?
What do we know about the UK’s plans?
What does the UK face with other countries?
What does the UK face in the WTO?
Some GI titbits — style/method, orange, champagne, gruyère, feta


By Peter Ungphakorn

Among the thousands of policy questions facing Britain after it leaves the EU is what its approach should be for geographical indications.

These are names — like Melton Mowbray pork pies, Rutland bitter and Bordeaux wine — that are used to identify certain products.

The UK’s policy will affect both its own and other countries’ names, and it has now taken first steps in revealing what its approach will be.

People’s views of geographical indications range from cherishing them as precious cultural heritage and commercial property, to annoyance and scorn.

What are they? And what are the decisions facing the UK? This is an attempt to explain them simply. It’s in two main parts with a small third part tacked on.

Part 1 is the basics. Part 2 looks beyond that at policy.

Meanwhile the waitress above mentions 10 types of food and drink. How many are geographical indications? The answer is in Part 3 at the end.

More details can be found on the websites of the World Intellectual Property Organization (WIPO) and World Trade Organization (WTO).

PART 1 BASICSBack to top

Photo by Lana Abie on Unsplash
Protection is not all the same: some products with geographical indications

What are geographical indications (GIs)?Back to top

They are names used to define both the origin and the quality, characteristics or reputation of products.

Origin is not enough. A cheese made around Roquefort-sur-Soulzon in southern France cannot be called Roquefort unless it is blue, made from sheep’s milk and meets a number of other criteria.

What do they apply to?Back to top

The vast majority of geographical indications are on food and drink, particularly wines and spirits. This is because soil and climate conditions can contribute to the products’ specific qualities.

Some countries protect other types of products as well. For example “Native Shetland Wool” (agricultural but not food) in the UK, “Swiss” watches (non-agricultural) in Switzerland, and some types of carpets and other handicrafts around the world.

Thailand would even like a service to be protected — traditional Thai massage — but internationally geographical indications are only used with goods.

Are they always place names?Back to top

Usually the terms used are place names, but sometimes they are other words associated with specific regions.

For example basmati is a long-grain fragrant rice variety and not a geographical name. However, it is associated with the Punjab regions of India and Pakistan, although its status as a geographical indication is debated (the EU doesn’t recognise it) because it is grown elsewhere too.

How do they relate to rules of origin?Back to top

This has absolutely nothing to do with rules of origin, which are about customs procedures — determining whether a product can be called “made in” a certain country and therefore should qualify for duty-free trade or other special treatment under trade agreements.

Geographical indications are a type of intellectual property, a form of “branding”, along with copyright, trademarks and others, because the products’ characteristics are the result of production techniques as well as location.

Why protect them?Back to top

Protection is intended to benefit both consumers and producers. The EU speaks of ensuring a product is “authentic” (for consumers), and providing a marketing tool to give producers “legal protection against imitation or misuse of the product name”.

Under WTO rules, the objective is to avoid misleading the public and unfair competition.

What does protection mean?Back to top

It’s important to understand this. Geographical indications are names, so protecting them means that what’s restricted is only the use of the name. It doesn’t prevent copying or imitation — that’s handled by copyright and patenting.

“Feta” is protected in the EU, meaning the name can only be used in the EU if the cheese is made in Greece. Nevertheless, an identical or similar cheese made in the US (where it’s not protected) can be sold in the EU. It just can’t be called “feta”.

How much protection?Back to top

Sparkling wine: when is it champagne and when not?
Sparkling wine: when is it champagne and when not?

The bottom line for the WTO’s 164 members (including the EU and UK) is what is required in its intellectual property agreement (known as TRIPS or Trade-Related Aspects of Intellectual Property Rights). The agreement only sets minimum standards. It does not deal with individual names. How countries meet the standards and which names they protect is left up to them through their different legal systems.

The section on geographical indications is short. It has three parts, Articles 22, 23 and 24:

  • In general (Article 22), countries have to protect geographical indications to avoid misleading the public and avoid unfair competition. By this criterion, “Californian champagne” should be fine since consumers would be clear that this did not come from the Champagne region of France. But …
  • For wines and spirits (Article 23), protection is taken to a higher level — even if there is no danger of misleading the public or creating unfair competition. So “Californian champagne” is no longer valid. Except that …
  • There are a number of exceptions (in Article 24). These include if a term has become generic — cheddar cheese is clearly one case since it’s been made around the world for decades, if not longer. Also an exception is when the name was registered as a trademark before the WTO’s agreement was negotiated (“grandfathering”) — Parma ham has long been a trademark in Canada, an irritant for Italians who were unable to sell Prosciutto di Parma there until recently. The EU has waged a long-running and still unresolved battle with the US over the use of “Champagne”.

When the EU negotiates for its geographical indications to be protected in other countries, part of the effort is about reclaiming names that have become generic — or more vividly to “clawback” names that have been “usurped”. Feta cheese is one case. This 73-page document is what the EU and US have agreed for wines.

PART 2 POLICYBack to top

Gruyère, Switzerland
Gruyère is in Switzerland. Can France register a Gruyère cheese?

How are geographical indications protected?Back to top

The names are usually the property of groups of producers or regional or national authorities, not individual companies.

How they are protected depends on where, and this matters for the UK’s future relationships, such as how it seeks to have its own names protected abroad.

The European Union probably has the most detailed and sophisticated system. Stricter criteria apply to “protected designation of origin (PDO)” and only some products are eligible. A wider category is “protected geographical indications (PGI)”. A third, “traditional speciality guaranteed (TSG)”, emphasises the production method.

The EU’s database of wines contains over 1,700 EU geographical indications (some still being considered), and just over 1,000 from non-EU countries. Only five are British.

For spirits there are 270 geographical indications including some whose protection is being considered. Only four are non-EU. Two are British: Scotch whisky and Somerset cider brandy. Part-British is Irish whiskey made anywhere on the island of Ireland.

British? The UK wants to protect ‘watercress’

For other products, there are almost 1,600 “registered”, “published” or “applied for” geographical indications from both EU and non-EU countries; 79 are British.

(See also this official UK list of names. Among the foods the UK wants to protect is “watercress”.)

At the other extreme used to be Norway. A few years ago, WTO members were asked to fill in a questionnaire with some examples of geographical indications they protected. Norway said it couldn’t be sure because it used consumer protection law rather than a register of names, meaning a term would have to be in a court case to know for certain.

It managed only one possibility. “‘Hardanger’ might be a protected name,” it suggested (page 80 here). Since then, Norway has brought its system much closer to the EU’s.

Some countries use specific geographical indications laws and registers. Some use consumer protection. In the US and many others protection is by trademarks and certification marks. There are even variations of approach within the EU. The UK told the WTO that it uses common law (“tort of passing off”) for some terms and trademark law for others, although fundamentally the UK is applying EU law. (See the annex in this now out-of-date WTO document.)

Because the EU attaches so much importance to geographical indications, one of the key questions about the UK-EU relationship after Brexit is what happens to EU names currently protected in the UK? British producers will also want to know whether their products’ names will still be protected in the EU–27.

What does the UK face with the EU?Back to top


• The full EU position paper from September 2017
• The draft Withdrawal Agreement, February 2018, see the heading “Intellectual property: continued protection in the United Kingdom of registered or granted rights
• The March 2018 version with parts agreed highlighted in green. On intellectual property, the section on geographical indications was not highlighted as agreed, but those on trademarks and plant varieties were
• The November 2018 agreed draft confirming that the UK will continue to protect EU names

In theory, when the UK leaves the EU it will be free to decide how it protects geographical indications and which names to protect, so long as it complies with the WTO principles.

Will the UK move away from the EU’s near-obsession with geographical indications? It might not have too many wines, but it does have Scotch whisky and a lot of food products.

Its hand might also be forced by its future relationship with the EU. Geographical indications have always been a priority for the EU in its free trade negotiations and the EU has already demanded protection to continue in the UK after Brexit, at least for products whose names are already protected in the UK.

This is likely to mean the UK setting up its own lists of protected geographical indications with associated legislation.

What do we know about the UK’s plans?Back to top

It’s taken some time, but we now know — from the November 14, 2018 proposed Withdrawal Agreement tentatively agreed in Brussels, the July 2018 UK policy paper, and Britain’s “no deal” paper on geographical indications — that UK names currently protected in the EU, and EU names currently protected in the UK should both continue to be protected in Britain, assuming the deal holds.


38. Included in the remit of wider food policy rules are the specific protections given to some agri-food products, such as Geographical Indications (GIs). GIs recognise the heritage and provenance of products which have a strong traditional or cultural connection to a particular place. They provide registered products with legal protection against imitation, and protect consumers from being misled about the quality or geographical origin of goods. Significant GI-protected products from the UK include Scotch whisky, Scottish farmed salmon, and Welsh beef and lamb.

39. The UK will be establishing its own GI scheme after exit, consistent with the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). This new UK framework will go beyond the requirements of TRIPS, and will provide a clear and simple set of rules on GIs, and continuous protection for UK GIs in the UK. The scheme will be open to new applications, from both UK and non-UK applicants, from the day it enters into force.


When we leave the EU we will set up our own GI schemes which will be WTO TRIPS compliant, broadly mirror the current EU regime and be no more burdensome to producers. Details to be explored in a public consultation include the UK GI logo and appeals process. The protections will be similar to those enjoyed now by UK GI producers, with all 86 UK GIs given new UK GI status automatically. The UK would no longer be required to recognise EU GI status. EU producers would be able to apply for UK GI status. We will be publishing guidance on the UK GI schemes in early 2019.

The July 2018, 104-page UK policy paper (or white paper) on its future relationship with the EU has two short paragraphs on geographical indications. Briefly, the paper shows the UK intends to set up its own system. This could be different from the EU’s, but how different is not stated.

Then on September 24, 2018 the UK government issued another batch of papers on preparing for “no deal” with the EU. The one on geographical indications adds that the British scheme will “broadly mirror” the EU’s (see box).

The new paper confirms that the UK will continue to protect its own names automatically, but not other countries’ geographical indications currently protected in the UK under the EU’s system.

It was not until the November 14, 2018 draft Withdrawal Agreement that the situation for the thousands of names from EU–27 countries was clarified. It says any of these names that is protected in the EU at the end of the Brexit transition period will be registered in the UK with the same level of protection as they now enjoy, without any re-examination (see page 90 of the draft).

If the Withdrawal Agreement falls through, the fate of those EU names is uncertain. They may have to apply for protection and risk rejection.

This caused concern in Brussels where officials were reported to be studying whether the UK might risk violating the WTO’s “national treatment” principle — the UK might be discriminating against the EU (and others) if it automatically continued to protect its own names, while requiring other countries’ names to go through a registration process.

The intention to set up a system that goes beyond the requirements of the WTO’s intellectual property agreement seems to suggest the UK wants to extend the higher level of protection beyond wines and spirits to foods such as Cornish pasties and Melton Mowbray pies.

What lies behind the plan is unclear. One immediate reaction had been that the UK was aiming for a weaker system, allowing it to strike trade deals more easily with countries that are more sceptical about geographical indications, such as the US, Australia, New Zealand and Canada (more below). (See this Twitter thread by former trade official David Henig, also below, and this tweet by former trade minister Greg Hands, also below.)

The reference to “mirroring” the EU’s system in the “no deal” paper suggests that might not be the case.

Another is that Britain recognises how important geographical indications are for the EU–27 (which have many more protected names than the UK), providing a bargaining chip to extract a better deal from the EU. (See this Politico report and my own tweets here and below.)

What does the UK face with other countries?Back to top

Beyond the EU, the world of geographical indications has sometimes been described as a divide between old world countries, with traditional methods and products they want to protect, and the new world whose immigrant populations brought those techniques with them. It’s a bit more complicated than that. For example Taiwan is in the so-called new world group and some US producers now want protection for their own products, from wines to Idaho potatoes. But there is some truth in it.

In negotiations with some countries such as other Europeans, India and so on, the UK will be under pressure to protect their names. With others such as Australia, Canada, New Zealand, the US and some Latin American countries, the UK may be the one making the most demands to protect its names.

If it continues to protect EU geographical indications, Britain may need to tread carefully with the GI-sceptical “Anglosphere” countries. For example in its free trade talks, the UK might be under pressure to allow imports of Australian feta cheese (and it might want to make its own too).

The EU has deals on geographical indications with other countries, either as part of free trade agreements or separately. With Brexit, the UK wants to roll the EU’s free trade agreements over into its own, and may want to do the same with the deals on geographical indications. To do that will require either negotiation with the other countries or confirmation by them.

What does the UK face in the WTO?Back to top

The WTO agreements signed in 1994 included a commitment to set up a multilateral register for geographical indications of wines and spirts. Almost a quarter of a century later, members still have not agreed on how to do this.

The EU and its allies want the register to have some legal effect: if a name is on the register, then that should have some legal implications in all WTO members. The US and its allies prefer a register that is little more than a database of information, which countries would be free take into account (or to ignore) when they decide whether to protect a particular name.

A second issue is whether to give some or all other products the same higher level of protection as is now given to wines and spirits (Article 23), and presumably to include them in the multilateral register. This is often called “extension”: extending the higher-level protection beyond wines and spirits.

Although this has been discussed at length in the WTO, members still have not even agreed whether it is officially a negotiation. A large number of countries support the move, but in some cases for complex bargaining reasons. The US, Australia and so on oppose it on the grounds that it would be too burdensome and restrictive, and that the standard level (Article 22) is good enough.

The UK will have to decide how to approach these questions, and also the WIPO treaties on geographical indications.

Some GI titbitsBack to top

But is it champagne? Darjeeling claims to be the champagne of teas
But is it champagne? Darjeeling claims to be the ‘champagne of teas’

Geographical indications are complicated. Every argument has a counter-argument so they are a perfect playground for intellectual property lawyers, as the endless and bottomless debates in the WTO show. Here are some illustrations.

“-style”? Or “-method”?
If “Bulgarian yoghurt” can only be made in Bulgaria, what about “Bulgarian-style” yoghurt? One view is that this is a useful indication of what the product is, helping rather than confusing consumers.

Against that is the argument that “Bulgarian-style” has no owner and no definition. The term could be abused. The reputation of yoghurt associated with “Bulgaria” would be damaged, hurting both consumers and genuine Bulgarian producers. The poor reputation of parmesan cheese made outside Italy is a real-life example.

After all, one of the features of geographical indications is that they have owners responsible for maintaining the quality and reputation. The loose term “Bulgarian-style” would not have that.

Orange: homonyms and more
Several places could have the same name, or names that sound the same (homonyms). The WTO agreement broadly covers that, but homonyms can still get pretty complicated. In late 2000 Australia entertained WTO delegates with an analysis of “Orange”. It’s a place name on five continents, some with vineyards producing what could be called “Orange wine”. And then there’s wine made from oranges. Orange is also a colour and a phone company’s trademark. It’s linked to words in other languages, including Persian where the fruit is named after Portugal, and so on. (See page 6 of this.)

Wait. What? A white wine from Champagne in Switzerland
Wait. What? Wine from Champagne in Switzerland post-2005

Champagne: Swiss and Indian
A small village in northern Switzerland is called Champagne. It used to produce a still white wine with the name, but not since 2005. Pressure from France put an end to that. Meanwhile, in the WTO debate on “extension”, a US delegate once remarked wryly that Darjeeling tea, a claimed geographical indication, is advertised as “the champagne of teas”.

Gruyère is a region in Switzerland surrounding the medieval village of the same name. The cheese was first made there in 1115. It’s now been produced elsewhere for generations and the name has become generic, sometimes using “Gruyère” or an equivalent in another language.

Gruyère is not in France. Nevertheless, France has managed to register “French Gruyère” produced in a dozen departments as a protected geographical indication in the EU. Despite the stereotype of Swiss cheese, authentic Gruyère has no holes. But the French version does: it “must have holes ranging in size from that of a pea to a cherry”, according to the EU regulation.

In Switzerland, “Le Gruyère” now has a Swiss protected appellation of origin (AOP) covering four whole cantons and parts of a fifth.

But is it protected in the EU? The 2011 bilateral agreement between Switzerland and the EU says it is, along with a number of other Swiss products. As an illustration of how complicated these names can be, in the agreement, Switzerland and Greece also promise not to translate “graviera” (γραβιέρα) as “gruyère” and vice versa.

However there seems to be no internal EU law or regulation confirming this — not yet anyway — and nothing Swiss appears in the “DOOR” database of products other than wines or spirits. We can only assume the bilateral agreement holds.

On a much smaller scale than the EU, Switzerland has also been trying to “reclaim” terms that have become generic. In 2013 it secured US registration for “Le Gruyère” as a certification mark (similar to trademark). But a joint application by French and Swiss producers to protect just the word “Gruyère” in the US has been challenged and remains unsettled.

One of the most-debated names: feta
Most-debated: feta cheese

This is one of the most-debated names in the WTO. The minutes of this meeting contain 14 pages of debate in which “feta” appears 50 times. Similarly for these meetings. Is it eligible for protection? Is it generic? Where exactly is its origin? Greece, Bulgaria, Denmark even? Is the legal situation in the EU contradictory? Should migrants to Australia be allowed to continue to use the name for the cheese that their ancestors made? Is feta actually produced in Australia by immigrants or by large companies?

Still have an appetite?
In 2005, the WTO Secretariat summarised the debates on “extension” in the organisation in a 44-page 21,000-word paper. Heavy going but essential reading for anyone wanting to dig deep into the subject. You can also download this 232-page guide from the International Trade Centre. Either way, keep a good Irish whiskey or Spišská borovička at hand.


At the top of this article, the waitress refers to 10 types of food and drink (not counting the general “lamb” and “cheese”). Some are geographical indications, some are not:

Geographical indications protected in the EU and therefore the UK — Cornish pasty; Tiroler Bergkäse; Caerphilly; French Gruyère; Amarone della Valpolicella; Armagnac. The EU has agreed to protect Le Gruyère from Switzerland but this does not (yet) appear in the EU’s database.

Names that are generic in the EU/UK — Cheddar (except “West Country Farmhouse Cheddar cheese,” which does include the original Cheddar area in Somerset, and “Orkney Scottish Island Cheddar”, from over 1,000 km away)

Not geographical indications in the EU/UK — New Zealand lamb (although “Scotch lamb” is); Evian (Evian is a place, a lakeside French town at the foot of the Alps, but the name is a trademark for bottled water)

P.S. The tweets cited in the text:
1. By former UK trade official David Henig:

2. By former UK trade minister Greg Hands:

3. My own:

• May 7, 2018 — references to Switzerland’s “Le Gruyère” have been corrected to reflect protection in the EU under the 2011 bilateral agreement and to remove the assertion that the name is not protected because it’s not in the DOOR database. (Thanks to Christian Häberli for pointing me to the bilateral agreement and the US certification mark)
• September 2, 2018 — substantially updated with the UK’s plans published in July, and reactions
• September 26, 2018 — added reference to “mirroring” the EU’s system from the “no deal” paper, the section on the meaning of protection, and links to the draft Withdrawal Agreement and EU position paper; restored missing “waitress” image at the top
• November 17, 2018 — added provisions from the November 14 draft Withdrawal Agreement

• Waitress — Steven Cleghorn on Unsplash, CC0 (public domain)
• Wine, cheese and parma ham — Lana Abie on Unsplash CC0
• Champagne — Pexels CC0
• Gruyère; wine from Champagne in Switzerland — Peter Ungphakorn CC BY 4.0
• Watercress and chives on bread — silviarita on pixaby CC0
• Darjeeling tea montage — black tea leaves, photo by Oleg Guijinsky on Unsplash CC0; Darjeeling tea, first flush 2007 Risheehat Estate, photo by David J Fred CC BY-SA 2.5
• Feta — JJ Harrison CC BY-SA 2.5

Questions on Brexit, agriculture, WTO schedules, standards, free trade agreements

Written replies to questions for the inquiry of the UK House of Lords EU Energy and Environment Sub-Committee’s inquiry on ‘Brexit: agriculture’, February 8, 2017

By Peter Ungphakorn

On February 8, 2017 the UK House of Lords EU Energy and Environment Sub-Committee’s inquiry on Brexit: agriculture published two sets written replies to questions.

My answers are below. They can also be found on the Parliament website: here (ABR0001) and pdf.

Also published were replies and statements from Christian Häberli of the World Trade Institute, Bern, Switzerland: browse, or pdf

Full coverage including transcripts and videos of the hearings is here.

Alan Matthews (left) and Joseph McMahon speaking to the House of Lords EU Energy and Enviornment Sub-Committee, February 7, 2017. Click the image to watch the session


1.    Can the UK unilaterally construct its own WTO Schedule of Commitments in agricultural products after Brexit? If the UK does construct its own Schedule, will this be legally binding on other WTO members, including the EU?
2.    To what extent is it possible to determine the EU-28’s current commitments in agricultural products in the WTO for (a) Tariffs (b) Tariff rate quotas (c) domestic support and (d) export subsidies for agricultural products? What impact might this have on (a) the UK’s negotiations with the EU and (b) the UK’s negotiations with other WTO members?
3.    What, if any, are the legal and political challenges of splitting the EU-28’s WTO Schedule of Commitments on agriculture between the UK and the EU? To what extent can this issue be settled (a) by applying WTO law in dispute settlement proceedings before the WTO panels and/or Appellate Body and (b) by political negotiations between the UK and the EU and between the UK/EU and the other WTO members? Could the ‘Czechoslovakia’ example act as a precedent?
4.    To what extent can the UK restrict the import of agricultural products because they do not meet the same quality and safety standards as those produced in the UK? If the UK adopted a precautionary approach to the import of agricultural products into the UK, to what extent would such an approach be compatible with WTO rules?
5.    Why do free trade agreements rarely include agricultural products? What are the main challenges the UK would face when negotiating new free trade agreements covering agriculture with (a) the EU, (b) the USA, (c) Australia, (d) New Zealand and (e) other WTO members? What are the key lessons learnt by the EU or other WTO members negotiating such FTAs?
6.    Which of the EU’s FTAs with other countries include agriculture? Will the UK be able to negotiate continued access to these agreements after Brexit?

  1. Can the UK unilaterally construct its own WTO Schedule of Commitments in agricultural products after Brexit? If the UK does construct its own Schedule, will this be legally binding on other WTO members, including the EU? Back to top

No, to both questions. First, the UK can and should draft its own schedules of commitments in agricultural products (and all other sectors). But they will not be legally secure until they have been certified by all WTO members — meaning until there are no WTO members with any objection. Once certified, they will be legally binding.

Second, a country’s schedules are not binding on other WTO members. They are commitments that the country has made to the rest of the membership. Other countries have their own schedules.

It is possible to trade without certified schedules. The EU continues to trade even though its goods schedule for the May 1, 2004 enlargement from 15 to 25 members was only certified 12 years later on 1 December 2016. The schedule for further enlargement to 27 and 28 members has not been certified.

The EU appears to operating with de facto schedules, for example revised tariff quotas appear in EU regulations. And it can trade without disruption, apparently because it has talked to key trading partners and adjusted its tariff quotas accordingly. The latest regulation for the lamb and mutton tariff quota states that the quota has been expanded for New Zealand, to accommodate Bulgaria and Romania becoming new EU members (but not yet for Croatia).

In other words, unilaterally creating the UK’s draft schedules without taking on board what other countries say could cause problems. Some negotiation will be needed so that the drafts are made reasonably acceptable to the UK’s trading partners, including the EU. But until the schedules are certified, the UK will be on legally uncertain ground, at best requiring complex legal arguments to defend the schedules’ contents. We don’t know how other countries would react.

  1. To what extent is it possible to determine the EU-28’s current commitments in agricultural products in the WTO for (a) Tariffs (b) Tariff rate quotas (c) domestic support and (d) export subsidies for agricultural products? What impact might this have on (a) the UK’s negotiations with the EU and (b) the UK’s negotiations with other WTO members? Back to top

Strictly speaking, the EU’s legally binding WTO commitments are only its certified schedules, the latest for goods being for the EU-25 (WTO document WT/LET/1220 and attachments available by going to https://docs.wto.org and searching for WT/LET/1220).

This was only certified two months ago (effective from December 1, 2016 but circulated on December 14, 2016). Because it covers 10 new member states, it should be much closer to the schedule for the EU–28 than the one in force until the end of November (for the EU–15).

What about the EU–27 and EU–28? The current situation with the EU’s goods schedule is on the WTO website here: https://www.wto.org/english/tratop_e/schedules_e/goods_schedules_table_e.htm#eec, although at the time of writing this has not been updated to include the certified EU–25 schedule.

The 7th column lists a number of documents used in negotiations for the EU’s enlargement to 27 members, the latest being G/SECRET/32, “currently underway” — presumably referring to the status of negotiations on that draft. Documents in the series G/SECRET/… are so restricted that even WTO Secretariat staff cannot access them, except for a few key people.

There is no mention of any negotiation over the enlargement to 28 members when Croatia joined, which could be a problem when discussing the post-Brexit schedules of the UK and EU with other WTO members.

Before that, the WTO Secretariat’s report for the Trade Policy Review of the EU (the latest review, in document WT/TPR/S/317/Rev.1 of 21 October 2015) said:

The current certified tariff schedule is the EU-15, effective 27 October 2012.[1] The EU’s tariff concessions and agricultural commitments regarding agricultural market access, domestic support, and export subsidies to reflect the enlargement from 15 to 28 member States have not yet been formally agreed in the WTO. The EU submitted its EU-25 schedule for certification on 25 April 2014[2] and has initiated the procedures for the EU-28 schedule (section With regard to the certified EU-25 services schedule, 18 EU member States have ratified the schedule.[3] ”

As an EU member, the UK government ought to have access to the uncertified de facto schedules for the EU-28 both from Brussels (if not London) and any drafts at the WTO (although none appear to be with the WTO at the time of writing). This can be confirmed with government officials who ought to be able to provide better answers than I can on these points.

The public can detect the contents of the de facto schedules, but not always easily. There are two possible sources, both requiring work to compile the contents into one document: the EU’s own regulations, and its notifications to the WTO (under “The Agriculture Committee and official documents”, in the agriculture section of the WTO website, http://www.wto.org/agriculture#work).

  • Tariffs: these should be available from customs authorities, EU Trade or the UK Department of International Trade (bearing in mind applied tariffs can be lower than the legally bound rates). Most of them are unlikely to be very different from the tariffs in the schedule for the EU-15.
  • Tariff rate quotas: each of these should be available in separate EU regulations. They are also available in EU notifications on agricultural tariff quotas, but without the details from the schedules of how the quotas are divided among individual supplying countries.
  • Domestic support: the commitment is only one figure, for total aggregate measurement of support (AMS). The EU reports this in its domestic support notification along with an explanation of how much it has added for each expansion up to 28 members.
  • Export subsidies, also in the EU’s notifications. The latest for marketing year 2014/15 says the commitment is for the EU-25 while the actual reported subsidies are for the EU-28. Since the actual subsidies are considerably less than the limit, this difference is unimportant.

I would assume the UK’s negotiations over its schedules, both with the EU and other countries, ought to be based on the de facto schedules currently in use, because both the EU and the UK should have access to them.

We don’t know yet whether other countries would be willing to negotiate from the de facto pre-Brexit EU-27 schedules (with apparently nothing existing yet for the EU-28), but at this stage there seems to be no indication that they would object. Any that are holding back on certifying the schedules might have some reservations, but we don’t know what their objections are.

  1. What, if any, are the legal and political challenges of splitting the EU-28’s WTO Schedule of Commitments on agriculture between the UK and the EU? To what extent can this issue be settled (a) by applying WTO law in dispute settlement proceedings before the WTO panels and/or Appellate Body and (b) by political negotiations between the UK and the EU and between the UK/EU and the other WTO members? Could the “Czechoslovakia” example act as a precedent?Back to top

The only areas where the UK and EU would split their commitments are tariff quotas (or tariff-rate quotas, TRQs) and agricultural subsidies. Most of the rest of schedules can remain unchanged. For example the UK can simply continue with the thousands of tariff commitments it currently has as an EU member. So my reply focuses on the quotas and subsidies.

I’m not a lawyer and cannot respond definitively to the legal points of (a). I do know that opinion is split. Some lawyers believe the UK can construct its schedules using legal principles and that if other countries object, the UK would probably prevail in any legal dispute. Some other lawyers disagree. The argument seems to be based on the idea that the entire UK schedule is obtained by using criteria based on WTO case law, leading to “rectification” (a more or less technical correction of the UK’s schedule implied in the EU’s schedule).

Many who have first-hand experience of how the WTO works, beyond the jurisprudence of dispute settlement cases, doubt whether other WTO members would accept the UK’s legal arguments, and whether the legalistic approach would be enough. I share that view.

For example, to account for current UK-EU trade in sheep and goat meat, almost 100,000 tonnes would be added to the combined UK and EU-27 tariff quota, around 33% more than its present size. That seems to stretch the idea of “rectification” (a technical correction) too far.  It’s an adjustment arising from terminating a free trade deal (along with withdrawal from the rest of the single market), and introduced in order to take into account the volume of that duty-free trade between the UK and the EU.

Judging by recent experience in WTO negotiations, there may even be bargaining over which representative period to use as a basis for calculations. Possible options include averages over the last three or five years, including or excluding the highest and lowest numbers (an “Olympic average” excludes extreme points), and so on. I look at all of these points in detail here: https://tradebetablog.wordpress.com/2017/01/06/limits-of-possibility/

Generally, therefore, the UK and EU quotas should be settled by negotiation, where both political and commercial interests would play a part. Legal precedent would be a useful starting point, but probably not the conclusion. This would minimise any resentment and any trade disruption that might result from it.

Experts with inside experience of these processes have told me the Czech-Slovak split is not a suitable model. The split was under the General Agreement on Tariffs and Trade (GATT, the WTO’s predecessor), and before the agriculture and services agreements were added to the multilateral trading system. The two countries swiftly set up a customs union, meaning little changed in goods trade between the two and between them and the rest of the world. As a result, the rest of the GATT membership had few problems with this, at a time when they also wanted to ease former Soviet bloc countries into the multilateral trading system. The two then became EU members. The sizes of the UK and EU and the scale of the tasks they face are quite different.

  1. To what extent can the UK restrict the import of agricultural products because they do not meet the same quality and safety standards as those produced in the UK? If the UK adopted a precautionary approach to the import of agricultural products into the UK, to what extent would such an approach be compatible with WTO rules? Back to top

No WTO member can restrict imports purely on quality grounds. The WTO has criteria for requiring imports to meet certain safety, health and other standards. They are set out in the WTO agreements on Sanitary and Phytosanitary measures (SPS, dealing with food safety and animal and plant health), and Technical Barriers to Trade (TBT, other standards, regulations, labelling, etc).

Broadly, the criteria include having to provide scientific evidence or a risk assessment that the standard or measure is necessary for health or safety, or adopting an internationally-recognised standard. (WTO members have also agreed non-binding codes of good regulatory practice.) So long as the standards meet the legally binding criteria the UK can (and does, through the EU) require imports to meet the same standards as its own products. It cannot set stricter standards on imports than on domestically-produced products. This is known as applying “national treatment”.

WTO agreements don’t mention a “precautionary principle” specifically. However, some experts see article 5.7 of the SPS Agreement as a means of adopting the principle at least temporarily until the government obtains “additional information necessary for a more objective assessment of risk” and reviews the measure “within a reasonable period of time”.

  1. Why do free trade agreements rarely include agricultural products? What are the main challenges the UK would face when negotiating new free trade agreements covering agriculture with (a) the EU, (b) the USA, (c) Australia, (d) New Zealand and (e) other WTO members? What are the key lessons learnt by the EU or other WTO members negotiating such FTAs?Back to top

Many if not all free trade agreements actually include agricultural products on way or another, but they may have exemptions or delays on scrapping import duty on these products.

Agriculture is a particularly sensitive sector for various reasons: politics, culture, concerns about rural society, food security, and so on. It is often one of the last areas to be liberalised whether multilaterally or through free trade agreements. The most sensitive products have ended up with tariff quotas using prohibitively high out-of-quota tariffs. Some free trade agreements also have tariff quotas.

In general, the challenge the UK will face with all of those countries is to strike a balance between:

  • the demand for support and protection from the UK’s own farmers
  • the demand from UK consumers and processors for cheaper food and raw materials
  • the demand from exporters in the other countries for access to the UK market
  • the trade-off with UK producers in other sectors (such as services) wanting access to the other countries’ markets, which might entail opening up UK agriculture

For example, the UK might be willing to give Australia a larger quota for meat or dairy products in return for Australia allowing better access for British financial services or protecting British geographical indications such as Melton Mowbray pies or Scotch whisky. Some geographical indications are covered by bilateral agreements between the EU and the US, Australia and others. They mainly deal with wines and spirits since “new world” producers resist tightening protection for food and other products. It’s unclear whether those agreements will automatically apply to the UK. The full list is here: https://ec.europa.eu/agriculture/gi-international_en. Some of the EU’s free trade agreements also include chapters on geographical indications, for example the one with South Korea.

The range of sensitive agricultural products is extensive: dairy, meat, fruit and vegetables, various cereals, sugar, and so on. Canada (not listed in the question) also has interests and sensitivities in the dairy sector.

Large books have been written about the lessons learnt. Some of the issues most frequently mentioned in current conversations include:

  • Agreement can be held up by complex ratification processes in federal systems (the Walloon parliament on the Canada-EU agreement, for example) or where parliaments are strong (the Trans Pacific Partnership was under threat in the US Congress even before President Trump pulled the plug)
  • Many agreements include investor-state dispute settlement (ISDS) provisions, which are deeply unpopular because, rightly or wrongly, they are seen to give large companies power over governments. Some experts think the mega-regionals (TPP and TTIP) would be easier to conclude without ISDS. The EU is proposing an alternative multilateral arbitration system, but it’s unclear whether this will be more acceptable
  • When negotiations are secret, they are an easy target. To gain public support, they should be more transparent, while allowing new ideas to be floated in confidence until they become more established.
    (To declare an interest: I worked on information at the WTO Secretariat, where I think we were reasonably successful in striking a balance in the Doha Round negotiations. For example all the chairs’ drafts and other texts have been published as they have evolved, and the WTO website contains broad-brush accounts of the negotiating sessions, along with many of the members’ proposals. After the protests in Seattle in 1999, the WTO was rarely accused of secrecy, unlike with the negotiations under its predecessor, GATT.)

  1. Which of the EU’s FTAs with other countries include agriculture? Will the UK be able to negotiate continued access to these agreements after Brexit?Back to top

The answer is more complex than the question suggests. Most if not all EU FTAs include agriculture in one way or another, including exemptions for specific products or lengthy phase-in periods, and various provisions on rules as well as tariffs. Experts who have studied the many agreements in detail may be able to answer better than I can.

On its website, http://ec.europa.eu/trade/policy/countries-and-regions/agreements/, the EU lists 44 agreements currently in place (including the one with Canada, which has been signed but still needs final parliamentary approval). Some agreements cover goods alone, others both goods and services. Here are two examples:

  • The EU-South Korea FTA lists all agricultural products, with tariffs generally at zero immediately or gradually over periods of up to 21 years, depending on the product and whether it is imported into the EU or South Korea. In addition, some products escape tariff reductions completely, such as rice in both markets.
  • The customs union with Turkey includes a section on agriculture with the “common objective to move towards the free movement of agricultural products” and even to have a common agricultural policy, under a 22-year timetable in an “additional protocol” originally signed in 1970 but still not yet achieved.

As far as I can see, there is nothing to stop the UK negotiating continued access to these agreements provided the FTA partners also agree. Whether those negotiations lead to identical terms, or something different, depends on the negotiations. For some, the criteria will clearly be different. It’s hard to see the present EU agreements with Iceland and Norway being replicated with the UK, not least since they include the four freedoms of movement and contributions to the EU budget.

I have not seen any legal argument suggesting transferring the agreements to the UK will be automatic or a legal right.

Perhaps the most important question is what happens to the UK’s trade under the EU’s FTAs while the UK’s new FTA negotiations have not been concluded.

For all of these points, take for example an FTA between the UK and South Korea. This could be based on the EU-South Korea FTA, a 1,432-page document which includes the following:

  • around 70 pages of detailed terms, conditions and regulations for trade in goods and services, and intellectual property rights
  • well over 1,000 pages of commitments by the two sides on goods, including a number of tariff quotas
  • annexes on regulatory convergence and conformity on electronics, motor vehicles and parts, and pharmaceutical products and medical devices
  • an annex on agricultural safeguards. These are temporary tariff increases to deal with import surges — the present trigger levels are for imports from the EU, which would have to be adapted if separate figures are to be established for the UK and EU27
  • around 250 pages of commitments on services
  • a couple of pages on public procurement and build-operate-transfer contracts
  • about 25 pages on geographical indications for food (none of it British) as well as wines and spirits
  • institutional arrangements, including arbitration
  • other annexes containing, for example, definitions or criteria

Creating a UK version of this agreement has many similarities with creating the UK’s WTO schedules out of the EU’s plus any changes the UK and South Korea might want to make to the regulations.

That is just one of 44 agreements, but perhaps one of the most detailed. To ensure continuity, the UK should reach agreement with all of the EU’s 44 FTA partners by the time it leaves the EU. That sounds like extremely hard work, since during the same 2-year period the UK will already be negotiating with the EU, potential new FTA partners such as the US, Australia, New Zealand, India and others, and with all WTO members over its schedules.

EU-South Korea FTA:  http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:2011:127:FULL&from=EN

EU-Turkey Customs Union:  http://www.avrupa.info.tr/fileadmin/Content/Downloads/PDF/Custom_Union_des_ENG.pdf

EU-Turkey Additional Protocol: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A21970A1123(01)

2 February 2017

[1] WTO document WT/Let/868, 30 October 2012.
[2] WTO document G/MA/TAR/RS/357, 25 April 2014.
[3] WTO document S/C/M/111, 21 November 2012.

Updates: none so far
: Screenshot from UK Parliament TV

Why UK is already under WTO rules, and why that matters for Brexit

If we want to understand the UK’s trade relations with the EU after Brexit we cannot say that without a UK-EU deal they will “fall back on WTO rules”

By Peter Ungphakorn

Now that the UK is about to start negotiating its departure from the European Union, it’s important to understand the meaning of World Trade Organization (WTO) “rules”.

Why? Because people are talking about WTO rules as if they only kick in if the UK and EU fail to reach agreement on their future trade relationship — that only then would the UK and EU “fall back on WTO rules”. They are wrong.

The truth is: WTO rules already apply to the UK’s present trade relationship with the EU.

They will also apply to any future trade relationship between the two, whether there is a deal of some kind, or no deal at all — so long as the UK and the EU and its member states are members of the WTO.

Falling back on WTO “terms”Back to top

So what will the UK and EU fall back on if they cannot agree and the UK still leaves the EU?

They will fall back on commitments they have agreed in the WTO for trade with all other WTO members — except for those with whom they have a special (or “preferential”) trade arrangement, such as a free trade agreement.

This is sometimes called “WTO terms”, a better shorthand description than “WTO rules”. Some speak of “WTO tariffs”, which is more precise but doesn’t include services and agricultural subsidies.

Without a special deal between the UK and EU, trade between them will face import duties according to their WTO commitments for normal trade (without any free trade agreement).

The import duties (or “tariffs”) they charge on each other’s products will have to be the same as they charge on products from all WTO members except partners in free trade agreements. WTO non-discrimination rules would apply.

Limited amounts of some products — mainly agricultural — will be traded at low tariffs, with volumes outside those quantities facing much higher tariffs, so high that it might be impossible to import them. These are called tariff quotas.

British and European service industries are now relatively free to trade across the EU or to set up in other EU countries. Without a special deal, services trade between the UK and EU will revert to the much less liberal commitments they have made in the WTO on opening their markets to foreign services.

The commitments are explained in more detail here.

WTO Public Forum 2010
WTO: to understand it is to understand what will govern UK-EU trade relations
UK-EU relations and WTO “rules”, now and in the futureBack to top

Even now, while the UK is a member of the EU and its single market, it is governed by WTO rules. These mainly deal with how the EU and its member states relate to the rest of the world. They also discipline how the single market and customs union themselves are set up.

The WTO rules affecting the UK and EU cover a large number of issues. They include:

WTO rules are actually negotiated agreements. The full package is here.

The EU’s member states have agreed to go beyond those WTO rules for much of their trade relations. Therefore when disputes arise between the member states, they are handled within the EU, for example if the UK objects to French restrictions over foot and mouth disease.

After Brexit, the UK and EU aim to have some kind of free trade agreement. This will have to come under WTO rules including one that says a free trade agreement in goods or a customs union must cover substantially all trade.

Another says an agreement in services has to have substantial sectoral coverage.

Even though they are both members of the North American Free Trade Agreement, the US and Canada have taken some disputes to both the WTO and NAFTA

In other words, WTO rules will prevent the UK and EU from having a free trade agreement only for the auto industry, aerospace and banking.

That long list of all the areas covered by WTO rules will also govern UK-EU relationships even if they have a comprehensive agreement.

Depending on the type of arbitration set out in their agreement, they could also find themselves facing each other at the WTO dispute settlement court.

The US and Canada have taken each other to WTO dispute settlement even though they have an arbitration mechanism within their North America Free Trade Agreement (NAFTA). Some cases have been taken to both the WTO and NAFTA.

Failure to understand this would mean a failure to understand the future UK-EU trade relationship.

The complete deal: WTO agreements at the signing ceremony, Marrakesh, 1994. The rule book is on the far left. The rest are more than 20,000 pages of the original 123 members’ individual commitments
Finally, WTO rights and obligationsBack to top

To complete the picture, the WTO is a system of negotiated multilateral trade agreements. The whole package must now run close to 30,000 pages. It consists of two parts.

First is a rule book of about 500 pages. Among the key principles running through its wide-ranging coverage is non-discrimination in trade — between a country’s trading partners, and between foreign companies, products and people and its own.

The remaining 20 to 30,000 pages are the lists of commitments made by each of the WTO’s 164 members, the limits they have agreed on tariffs on tens of thousands of products and on agricultural subsidies, and the minimum market opening they have promised for various services.

Under those agreements, WTO members have rights (for example not to face discrimination, and to have access to other countries’ markets) and obligations (for example not to discriminate, or to keep markets open at least as much as they have committed).

The agreements come from negotiations. The WTO dispute settlement system is about whether those agreements are being implemented as promised or how they should be interpreted. All decisions are taken by the membership, almost always by consensus (meaning no one objects).

The clichés are: the WTO operates a rules-based trading system; and it is member-driven.

Updates: Februay 15, 2017 — adding link to WTO legal texts
Photo credits: WTO via Flickr; Marrakesh signing by Peter Ungphakorn

Can EU law really dictate World Trade Organization rules?

This is a genuine question. I don’t know the answer. Hopefully some lawyers can help explain why the WTO and EU are trying to dodge the question of how to count the organisation’s members

By Peter Ungphakorn

If you visit the WTO website today, bang in the middle of the homepage is a countdown image declaring that only 10 ratifications are needed before the Trade Facilitation Agreement enters into force.

From wto.org homepage December 1, 2016

What you won’t see is another countdown that should be even more exciting.  Much closer to entering into force is a long overdue amendment on pharmaceutical patents — only three more ratifications are needed.

The pharmaceutical patent amendment was once hailed as an important change to the rules on access to medicines, allowing governments to license the production of generic versions of patented drugs so they can be exported to countries that need them.

Now it is the subject of a low-key drip, drip, drip of information. There is no countdown. There are no numbers other than the vague statement in a news story that “over 65 per cent of WTO members” have ratified the amendment.

Dealing and not dealing with it
Competence and incompetence
What next?
More information

The contrast with trade facilitation could not be greater. Why is this happening?

The difference could be justified on the grounds that the Trade Facilitation Agreement — which aims to streamline customs and other procedures at the border — is worth considerably more than the amendment on pharmaceutical patents.

This is principally because the content of the patent amendment has been in place for over a decade through a legal instrument called a “waiver”. The amendment simply confirms the waiver’s content as a change to the WTO agreement on intellectual property (called TRIPS, Trade-Related Aspects of Intellectual Property Rights).

It makes absolutely no difference to real-world access to medicines since in practice the rule was already changed in 2003 thanks to the waiver. What the amendment does is tidy up the text of WTO agreement.

BashfulnessBack to top

That might justify the low-key approach. It does not explain why the WTO is so bashful about exactly how many countries have ratified the amendment.

The truth is the WTO and European Union have different views on how the EU should be counted for the purposes of these ratifications. The differences are described here.

No other group of WTO members could say ‘We’ve ratified but please count that as only 96.55% of us.’

It’s unclear why the differences matter, or more specifically, why the EU’s view should carry any weight in the WTO. No other group of WTO members could say “We’ve ratified but please count that as only 96.55% of us.”

The EU’s membership in the WTO is clear. At the ceremony that created the WTO in Marrakesh in April 1994, EU External Trade Commissioner Sir Leon Britton and each of the ministers from the EU member states signed the WTO agreements.

As a result, the EU itself and its member states are all WTO members. The present number is 28 member states + the EU = 29, which brings the WTO’s membership to 164. This is not disputed.

‘Look. Here’s the list of WTO members. You, EU, are 29 of them. End of story. If that’s difficult for you, it’s your problem, not ours. Deal with it.’

The problem is about counting ratifications (or “acceptances”) of amendments, including the Trade Facilitation Agreement, which is an amendment to Annex 1A (dealing with trade in goods) of the WTO Agreement. The EU insists it should be counted as 28 (the number of its member states) rather than the 29 (including the EU itself) that appear in the list of the WTO’s 164 members.

Why this should be a problem is beyond a non-lawyer like me. As far as I can see, the WTO only needs to say: “Look. Here’s the list of WTO members. You, EU, are 29 of them. End of story. If that’s difficult for you, it’s your problem, not ours. Deal with it.”

Dealing and not dealing with itBack to top

For trade facilitation, the EU did deal with it, but in a way that begs more questions than it answers. The EU created a footnote saying its ratifications (“acceptances”) should be counted by the number of EU member states (28), not the 29 that includes the EU itself. There is no explanation.

The footnote in the Trade Facilitation Agreement’s Protocol
¹ For the purposes of calculation of acceptances under Article X.3 of the WTO Agreement, an instrument of acceptance by the European Union for itself and in respect of its Member States shall be counted as acceptance by a number of members equal to the number of Member States of the European Union which are Members to the WTO

At least for this agreement, the numbers are unambiguous, which is why the WTO homepage can proclaim that only 10 more ratifications are needed to reach 110, two thirds of the WTO’s present membership of 164.

WTO Agreement, article X.3 on amendments
3.       Amendments to provisions of this Agreement, or of the Multilateral Trade Agreements in Annexes 1A and 1C, other than those listed in paragraphs 2 and 6, of a nature that would alter the rights and obligations of the Members, shall take effect for the Members that have accepted them upon acceptance by two thirds of the Members and thereafter for each other Member upon acceptance by it. […]

(We can overlook the bizarre mathematics resulting from this. Even though the EU is counted as 28, the WTO’s full membership is still 164. The two thirds needed for an amendment to take effect is still 110, which means the EU is imposing on non-EU countries the requirement for one more of them to ratify for the total to reach the 110.)

The pharmaceutical patent amendment is older. The trade facilitation deal was struck in 2013–14. By then, the EU had spent almost a decade ruing the fact that it had not added a similar footnote to the 2005 patent amendment.

For much of the same decade the rest of us could rue the fact that the EU thought this was a problem in the first place.

The best time to sort out this legal problem should have been during the 11 years that the patent amendment has waited to reach its ratification target. It’s probably too late now

There is a sobering thought to this. The best time to sort out this legal problem should have been during the 11 years that the patent amendment has waited to reach its ratification target, particularly since the amendment has no impact on real-life access to medicines. It’s probably too late now.

How the EU wants to be counted has never been formally confirmed. The only statement the EU has offered is from the Commission’s press office for trade. It said the EU should be counted as 28, citing a provision in the WTO Agreement which says if members vote (they have only ever voted once), then the EU’s votes will be counted as the same number as its member states.

The WTO Agreement on decision-making and voting, article IX.1 and footnote 2
1.       The WTO shall continue the practice of decision-making by consensus followed under GATT 1947¹. Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting. At meetings of the Ministerial Conference and the General Council, each Member of the WTO shall have one vote. Where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their member States² which are Members of the WTO. Decisions of the Ministerial Conference and the General Council shall be taken by a majority of the votes cast, unless otherwise provided in this Agreement or in the relevant Multilateral Trade Agreement³.
² The number of votes of the European Communities and their member States shall in no case exceed the number of the member States of the European Communities.

The press office also cited the trade facilitation footnote as an explanation, even though that came eight or nine years after the pharmaceutical patent amendment was agreed.

The voting rule is obviously designed to avoid giving the member states plus EU an unfair numerical advantage. This cannot be not a problem when WTO members ratify an agreement or amendment that they have already decided by consensus.

Competence and incompetenceBack to top

The more likely reason is internal to the EU, perhaps the strained political and legal relationship between the EU and the Commission versus the member states over “competence”, the EU’s areas of authority.

One clue could be the WTO’s list of ratifications for the patent amendment. The EU is included, but not its member states. There is an accompanying “instrument of acceptance” from the EU Council, which says the ratification is “binding” on the member states, without confirming that its member states have actually, individually, ratified the patent amendment.

By contrast, the ratifications page of the WTO-affiliated TFA Facility website lists the 28 EU member states individually. The page on the main WTO website does not, although there is no statement that the EU’s ratification is binding on the member states either.

So the questions are:

  • Why should the WTO be bothered about the EU’s internal problems over its and the Commission’s authority? What are the legal obstacles preventing the WTO from saying “Either you’ve ratified or you haven’t. Come back when you’ve sorted it out.”
  • If the EU has a problem confirming that individual member states have each ratified an amendment (rather than the notion of it being “binding” on the member states as a group), how should the rest of the world assess its ability to deliver ratifications and other decisions in the WTO?
  • If the Commission and/or Council do have the authority to make legally binding commitments on behalf of the member states, why do the EU’s ratifications have to be counted as 28 rather than 29?

And there’s more. Some WTO amendments, involving key principles such as discrimination, require all members to ratify. So long as the EU insists on being counted as 28 instead of 29, the ratifications will never reach the total needed.

WTO Agreement, article X.2 on amendments
2.       Amendments to the provisions of this Article and to the provisions of the following Articles shall take effect only upon acceptance by all Members:
Article IX of this Agreement;
Articles I and II of GATT 1994;
Article II:1 of GATS;
Article 4 of the Agreement on TRIPS.

What next?Back to top

The two amendments are now set to take effect later this year, or, more likely, early next year. For trade facilitation, it’s clear when the point will be reached. At the time of writing, just 10 more ratifications will do it.

For the pharmaceutical patent amendment, it’s possible we won’t know for certain when that point has been reached. We’ll only know for sure that the line has definitely been crossed after four more ratifications have been received.

Does that mean the amendment will spend some time in limbo? Not necessarily. It’s unlikely that the EU will change its position in the next few weeks, so that leaves two options for the WTO.

One is simply to assert its own count, by declaring the target has been reached after it has received three more ratifications.

The other is to perpetuate the fudge. At the critical moment the next third and fourth ratifications would arrive at the WTO simultaneously, as suggested at the end of this piece. This would satisfy the need to ensure the amendment is clearly ratified, but do nothing to clear up a totally unnecessary legal mess.

Perhaps one member is already waiting in the wings, ratification in hand, ready to submit it when the third ratification comes in.

What might be a suitable candidate? It could be a country on this list, and one that is likely to cooperate without any fuss.

Countries that have not yet ratified the patent amendment (December 1, 2016)
Afghanistan; Angola; Antigua and Barbuda; Armenia; Barbados; Bolivia; Burkina Faso; Burundi; Cabo Verde; Cameroon; Chad; Congo; Côte d’Ivoire; Cuba; Democratic Republic of the Congo; Djibouti; Ecuador; Fiji; Gabon; The Gambia; Georgia; Ghana; Guatemala; Guinea; Guinea-Bissau; Guyana; Haiti; Jamaica; Kazakhstan; Kuwait; Kyrgyz Republic; Liberia; Liechtenstein; Madagascar; Malawi; Maldives; Mauritania; Mozambique; Namibia; Niger; Nigeria; Oman; Paraguay; Russian Federation; Saint Vincent & the Grenadines; Sierra Leone; Solomon Islands; Suriname; Swaziland; Tonga; Tunisia; United Arab Emirates; Vanuatu; Venezuela; Viet Nam; Yemen; Zimbabwe.

It could be a European country close to the WTO and to Switzerland, whose internal ratification process is outside the global public eye.

Liechtenstein would fit the bill nicely, wouldn’t it?

More informationBack to top

WTO (and WTO-affiliated TFA Facility)

This blog

Updates: (None so far)

Picture credits: top image created using EU flag by rockcohen Creative Commons CC BY 2.0; hands by Pogrebnoj-Alexandroff Creative Commons CC BY-SA 3. WTO logo from WTO.

Back to top

Book review: How ‘Dialogue of the Deaf’ produced a sound tool for policy-making

This should bury a number of myths. The memoirs of 17 key authors of a WTO agreement plus an editor’s remarks make a unique account of a complex international negotiation almost miraculously producing a deal

By Peter Ungphakorn

International trade agreements are sometimes demonised as the Grand Plan imposed by major powers in cahoots with multinational corporations. Intellectual property rights is a particular target, as is the case currently with the Trans-Pacific Partnership (TPP), and previously with the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

TRIPS book cover_300x456

Watal, Jayashree and Taubman, Antony (eds), The Making of the TRIPS Agreement: Personal insights from the Uruguay Round negotiators, Geneva, World Trade Organization, 2015, pp 361 + appendixes.

Authors, and (for most) their affiliation at the time: Antony Taubman (current WTO Secretariat), Jayashree Watal (India), Adrian Otten (GATT Secretariat), Thomas Cottier (Switzerland), John Gero (Canada), Mogens Peter Carl (EU), Matthijs Geuze (GATT Secretariat), Catherine Field (US), Thu-Lang Tran Wasescha (Switzerland), Jörg Reinbothe (EU), AV Ganesan (India), Piragibe dos Santos Tarragô (Brazil), Antonio Gustavo Trombetta (Argentina), Umi KBA Majid (Malaysia), David Fitzpatrick (Hong Kong), Hannu Wager (Nordics), Jagdish Sagar (India), Adrian Macey (New Zealand), Lars Anell (Sweden, TRIPS negotiations chair)

CHF70.– in print. Free to download here

The Making of the TRIPS Agreement, the insightful, unofficial collected memoirs of 17 of the agreement’s key authors, plus one editor, challenges that view in two ways. This unique account of how a complex international negotiation can almost miraculously produce a deal should also bury a number of other myths. (Most notable is the idea that this was entirely about rich countries versus the poor — there were serious North-North differences and to a lesser extent South-South ones as well — or that negotiators were completely at the behest of industry lobbies.)

First, the conventional view is that WTO agreements are about balancing legal “rights” and “obligations”: they affirm a country’s rights, but oblige it to respect others’ rights as well. That balance comes from compromise, which is necessary for striking a deal. For the 1986–94 Uruguay Round talks, it meant reaching consensus among more than 120 countries. The round transformed the General Agreement on Tariffs and Trade (GATT) into the WTO, producing an expanded and updated set of agreements, one of which was TRIPS.

The TRIPS Agreement has now been in play for over 20 years, and the emphasis has changed. This is not so much about complying with a rights-and-obligations template, but about providing a good policy platform that includes options for dealing with a wide range of social and technological objectives:

“There is considerable opportunity for TRIPS implementation to include attaining public policy goals through sound policy-making, not simply passing legislation to achieve passive, formal compliance with the letter of the law,” writes co-editor Antony Taubman, the present director in charge of intellectual property at the WTO. That’s some distance from the starting point, which was a focus on tackling imported counterfeit goods.

Taubman has described himself as an interloper among the authors since he was negotiating disarmament at the time, perhaps not as different as it sounds. His overview chapter provides a good executive summary of the book.

Key TRIPS dates
Key TRIPS dates (click the image to see it full size)

LearningBack to top

Second, the book reveals how much the negotiators on all sides had to learn and then to compromise before this ground-breaking pact could be agreed. It highlights the critical role of flexibility both in the negotiations and also built into the resulting rules. So much for the Grand Plan.

Gobbledygook, fudge and theology
1989 …
… and beyond
Pride, lessons and regrets

A repeated theme is not only that many trade officials had to learn about copyrights, trademarks, patents, geographical indications and all the other flavours of intellectual property. Even more significantly they had to learn from each other. One of the results, 20 years later, is the clear respect they still have for each other.

It was in Negotiating Group 11 — the one on intellectual property — that Swiss negotiator Thomas Cottier learnt about other countries’ preoccupations, he recalls: “for example those with a strong generics industry, or the fear of abuse of rights, or the need to combine enhanced protection with enhanced transfer of technology and job creation. It was here that I learned about the importance of bringing about a proper balance while defending Switzerland’s core interests.”

Many trade officials had to learn all the flavours of intellectual property. Even more significantly they had to learn from each other

Indian negotiator Jayashree Watal (co-editor of the book) relates how she approached counterparts Mogens Peter Carl (EU) and John Gero (Canada) — both contributors to this volume — on compulsory licensing. The result was a compromise draft text that was largely accepted, India contributing to a solution instead of persisting with its hard line.

Without that understanding and respect, a TRIPS Agreement would not have been possible. The present deadlock in the WTO’s Doha Round negotiations can be blamed on the fact that in some key subjects, many delegations are still not really listening to each other — witness the interminable dialogues of the deaf in current WTO negotiating meetings, such as on geographical indications and biopiracy (among intellectual property topics), and some stalemated issues in agriculture.

“With the passage of time and in the light of the difficulties that the WTO has since had in making headway in its negotiating agenda, the scale of the TRIPS Agreement seems the more remarkable,” writes Adrian Otten, Taubman’s predecessor as director, and the key (GATT) Secretariat official in the TRIPS negotiations.

TRIPS book launch - cropped - Tony, Hannu, Macey - IPWatch Saez
At the book launch October 1, 2015. From left, Antony Taubman (WTO), Hannu Wager (Nordics, now WTO), Adrian Macey (New Zealand) | Catherine Saez, IP-Watch

Gobbledygook, fudge and theologyBack to top

Otten’s chapter will resonate with anyone following current talks. It outlines the story of the negotiations, the key phases, the variety of meetings needed, the criss-crossing of alliances of shared interests in the different subjects, the role of the Secretariat and chair (Lars Anell from Sweden) — both of whose main concerns were to help a deal to be struck, not to push any other agenda — and ultimately what it took to reach agreement.

Other writers fill in the details on the different alliances, how and when countries contributed in groups or individually to each area of intellectual property, what was happening within their governments, and how they responded to compromise. For example, having yielded on listing exemptions for patenting, the US turned to proposals for disciplining them, writes US negotiator Catherine Field. (Her “axioms” for a successful negotiation should be pinned to the desktop of every negotiator’s laptop, tablet or smartphone, and be adopted as the mission-statement of the WTO’s Institute for Training and Technical Cooperation. The whole book should be required reading for the ITTC’s courses on negotiation.)

It’s easy to mock what happens in the GATT/WTO — after all, the tedium has to be broken somehow. So here goes

The resulting compromise sometimes produced “precise” but “inelegant” syntax, which “to an innocent bystander […] looks like gobbledygook,” acknowledges the EU’s Carl. Sometimes the compromise was quite simply a fudge, recall Matthijs Geuze of the GATT Secretariat, and negotiators Thu-Lang Tran Wasescha of Switzerland and David Fitzpatrick of Hong Kong. The technical term is “constructive ambiguity”, meaning (although they wouldn’t put it so bluntly): “we got what we wanted, we’ll interpret it our own way, and you can take us to court if you disagree.”

In the process, TRIPS negotiators forced each other to suffer too. “It was not unusual to have lengthy ‘theological’ discussions based on one’s own policies and laws,” writes Gero, “but such discussions could not yield negotiated solutions.” He particularly remembers the arguments on enforcement featuring the merits of civil law versus common law. Of course, neither prevailed.

It’s easy to mock what happens in the GATT/WTO — after all, the tedium has to be broken somehow. So here goes. A couple of survival tips for anyone trapped in one of these statement-ridden sessions: look around the room and (1) count how many delegates are NOT listening — a measure of futility — or (2) add up the salaries and calculate how many of the world’s poor could have been fed in each passing hour — a measure of waste.

But there’s the rub. Otten’s account and more recent experience show that a dialogue of the deaf is actually essential, so long as it’s limited to an early phase of a negotiation. It allows countries to declare their interests.

While negotiators can afford to be deaf for a while, those assisting the talks cannot. Breakthrough to the next step needed that bureaucratic monster, the dreaded “synoptic table” compiling the entire range of positions into a single document. Later came a “composite text”, now linear but still containing everyone’s positions in layers of square brackets. Both were produced by the Secretariat and chair. Otten says these compilations allowed negotiations-proper to kick off in 1989, once work in Geneva had rescued the mid-term review that had failed the previous December.

1989 …Back to top

That year, 1989, turned out to be a turning point in a number of ways, several writers observe. In particular, it saw the fall of the Berlin Wall and the switch to market economies in those that had been planned centrally.

Times have changed. Ganesan now sees TRIPS as a ‘blessing in disguise’ for India

In 1989 the US also finally became a party to the Berne Convention on copyright. And in that year the US started to implement its “Special 301” legislation, allowing Washington to act against imports from countries it deemed to be violating intellectual property rights. Several developing countries decided it was better to negotiate multilateral rules that would take their concerns into account, than to face US unilateralism.

Malaysia was one, writes Umi KBA Majid. And it’s why India dropped its opposition to TRIPS, AV Ganesan recalls “candidly”: “Retaliatory action against Indian garment and other exports to the United States was looming large over India like a Damocles’ sword, especially in the last few years of the Uruguay Round.”

But ultimately India’s interests stretched beyond that: “India had a number of scientific and technical cooperation relationships with the United States at both the academic level (e.g. between universities) and the level of government science departments. The need for adequate protection of [intellectual property rights] in India was raised by the Americans as well, if those relationships were to be sustained,” Ganesan writes. Times have changed. He now sees TRIPS as a “blessing in disguise” for India.

Chairman Anell recalls that 1989 was also the year Tim Berners-Lee “implemented the first successful communication between a hypertext transfer protocol [aka http] client and a server.” The Internet was too young to have a major impact on the TRIPS negotiations, but several writers consider it to be important for the agreement’s future.

Book launch
At the book launch October 1, 2015. From left, Thu-Lang Tran Wasescha (Switzerland), Thomas Cottier (Switzerland), Jayashree Watal (India, now WTO) | Catherine Saez, IP-Watch

… and beyondBack to top

Trade negotiations are always a blend of developments inside and outside the talks, and the book provides accounts of both, from many angles. The EU, for example, was represented by the European Commission, which at that time was shielded from lobbying, unlike other delegations and even the EU’s own member governments.

It actually took only about two years of real negotiations to produce the bulk of what is now the TRIPS Agreement

The stories are also often personal and frank. Carl says he was in a minority of one on software protection, even within his own delegation. He admits that when the EU accused others of “usurping” its geographical indications (names identifying the origin and character of products) it was being “somewhat poetic”. (The EU still uses the term.)

It actually took only about two years of real negotiations to produce the bulk of what is now the TRIPS Agreement. This appeared as the intellectual property section of the draft Uruguay Round package produced in late 1991, known as the “Dunkel text”. Arthur Dunkel was GATT director-general at the time and chair of the overall negotiations, but much of the draft he circulated under his own responsibility was produced in the different subject groups — including the TRIPS text.

Two more years were still needed to arrive at a final package. Surprisingly, this book does not mention at all a couple of developments that were critical for lifting the round out of hiatus and towards a conclusion. Without them, there would be no TRIPS Agreement. These were the November 1992 US-EU deal on agriculture known as the Blair House accord, and the subsequent G–7 meetings in 1993.

So, as several authors observe, intellectual property ended up largely negotiated in its own bubble, except briefly when the Montreal ministerial meeting collapsed in 1988. Countries did see trade-offs with agriculture and textiles, but once the talks were underway, this was not overt. TRIPS never came up, for example, in “Green Room” meetings where key ambassadors would negotiate other trade-offs in the round.

The result is an agreement that has fared well for two decades, needing only one minor change (on compulsory licensing for exports of pharmaceuticals). Proposals are on the table for amendments on geographical indications and patents related to biological diversity, although both are far from being agreed. Previously critical activists now see the agreement as a reasonable benchmark to be defended against pressure to raise the bar further — “TRIPS-plus”.

Pride, lessons and regretsBack to top

History is only part of the story. No one can be this involved without having a large amount of pride mixed with some regrets or thoughts about the future. “The TRIPS Agreement is now firmly in place but it must not be overlooked that it addresses concerns of the past,” writes Ganesan. Swift technological change “in almost every field may soon render these concerns obsolete” and may require completely new approaches, he says.

The book ought to have a wider readership. I am not aware of anything else like it, at least on trade

Cottier, for example, calls for maximum standards to be added to existing minimum standards as a defence against “TRIPS-plus” pressure. Carl believes other “trade-related” issues should also be handled in the WTO, including labour standards and environmental issues. Several authors call for good competition policies for when intellectual property leads to monopoly (not always the case). Taubman says it’s time to look beyond trade in goods and services that contain intellectual property, to trade in intellectual property itself.

This fascinating book does have some flaws. The most serious is that it makes no concessions to non-specialist readers. We are expected to be familiar with the Uruguay Round, how GATT and the WTO work, the WIPO conventions, articles of GATT and TRIPS, and concepts such as Gattability, exhaustion and moral rights.

This is a pity because the book ought to have a wider readership. I am not aware of anything else like it, at least on trade. It should provide a valuable case study for anyone interested in how international negotiations can succeed but who may know little either about intellectual property or about the WTO or both. Even adding the odd phrase of explanation would help considerably, although the parts on specific types of intellectual property are bound to be technical. So while some parts are quite readable, others will be tough going for many. Also lacking is an index, which would make research so much easier.

That said, this is an enlightening collection, offering a range of perspectives on the talks, with anecdotes mixed in (apparently there was a 2 am bilateral session under the trees in the GATT car park) to show how personal relationships worked to produce the serious substance.

No doubt some periods of the negotiation were gripping, but a lot of it must have been tedious — much more fun to read about afterwards.

New book launched at WTO (IP-Watch)


Originally published by Intellectual Property Watch, October 22, 2015.
Photos by Catharine Saez, from this IP-Watch story on the book launch
CC attrib-noncommerc-sharealike 4.0 88x31Reproduced under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence

Back to top

The race for the first ever WTO amendment: some key facts

The first stage of the race has been won. In early 2017, two thirds of World Trade Organization members ratified two amendments. Now it’s up to the rest

By Peter Ungphakorn
POSTED JULY 31, 2016 | UPDATED March 5, 2018

The World Trade Organization agreements are over 20 years old. Economic and trade needs are changing fast. And yet the agreements have never been updated — until now. Two amendments have reached the target. To achieve that they needed 110 ratifications, two thirds of the WTO’s 164 members.

The first was on access to medicines in poor countries. It’s a technical provision — explained here — to solve a problem that emerged after the WTO’s intellectual property agreement (TRIPS) took effect in 1995. It allows generic versions of patented medicines to be made under compulsory licence and exported to countries unable to manufacture the medicines themselves.

Chart updated 5.3.2018
Click the image to see it full size

1. Why have they taken so long?
2. Will the amendments apply to everyone?
3. How the threshold was crossed

1. Pharmaceutical patent amenment
Countries that have not yet accepted
Countries that have accepted
2. Trade facilitation amendment
Countries that have not yet accepted
Countries that have accepted

Can EU law really dictate WTO rules?

The amendment was agreed as long ago as 2005. After a slow start finally reached the two-thirds target, although exactly how the ratifications should be counted remains in doubt for a bizarre reason (more below). However, this is no big deal for the real world: the amendment’s provisions are already in place.

The other amendment is much more significant economically. It’s a package on cutting red tape in customs and other border procedures that also includes assistance for developing countries.

This “Trade Facilitation Agreement” was a response to evolving  trading conditions. Successive rounds of negotiations had lowered tariffs, and as a result, bureaucratic procedures emerged as a more visible hindrance to trade.

Although a new agreement, it is treated as an amendment because it is added to the annex on trade in goods (Annex 1A) in the WTO Agreement, which already includes numerous agreements such as on agriculture and anti-dumping.

The trade facilitation deal was initially struck at the WTO’s Bali Ministerial Conference in December 2013 but the legal text was not approved until November 2014. India delayed the approval as a bargaining chip to secure changes on a decision on agriculture that it had originally agreed in Bali.

Why have they taken so long?Back to top

It’s only recently that the two amendments’ ratifications have approached the needed two thirds of the WTO’s membership

WTO amendments first have to be agreed by consensus. The one on pharmaceutical patents was agreed in Geneva in December 2005, on the eve of a ministerial conference in Hong Kong. The Trade Facilitation Agreement was finally agreed in Geneva on 27 November 2014.

Once agreed, an amendment still has to be ratified (officially, “accepted”), normally by two thirds of WTO members (WTO Agreement article 10.3). (In a handful of cases, mainly for changes to key principles such as non-discrimination, the entire membership  has to ratify — article 10.2.)

It’s only recently that the two amendments’ ratifications have approached the needed two thirds of the WTO’s membership, currently 110 out of 164. The amendment on pharmaceutical patents has taken much longer but finally reached the target on January 23, 2017. The Trade Facilitation Agreement quickly caught up.

Will the amendments apply to everyone?Back to top

Ratifying by the time or after the two thirds has been reached amounts to activating the amendment in the ratifying country

No. They will only apply to the countries that have ratified (WTO Agreement article 10.3). Once the two-thirds target is reached, the amendments will still not apply to the countries that have not yet ratified. It will only apply to them when they ratify.

In other words, ratifying by the time or after the two thirds has been reached amounts to activating the amendment in the ratifying country.

GATT Art.10.3 on acceptances
Paragraph 3 of WTO Agreement article X (click the image to go to the full text)

For the Trade Facilitation Agreement this seems important. The agreement includes technical assistance for developing countries as a condition when they make some commitments, known as “Category C” commitments.

These are: “Provisions that the member will implement on a date after a transitional period following the entry into force of the agreement and requiring the acquisition of assistance and support for capacity building,” according to this explanation.

For example, Mauritius includes these assistance needs as conditions for its Category C commitments: upgrading information management and staff training for enquiry points; better laboratories, software and staffing for testing products; improving risk assessments; and so on.

A commitment under Category C is, in effect, also a request for technical assistance on that particular item.

Can developing countries that have not ratified the Trade Facilitation Agreement nevertheless make Category C commitments (and therefore make that specific request under the agreement)? Logic would seem to say they cannot. However some countries have submitted Category C (and other) commitments even though they have not ratified. It’s unclear how that works (perhaps someone will clarify).

There is also an awkwardly named Trade Facilitation Agreement Facility, which serves as a lender of last resort if countries cannot find assistance elsewhere.

How the threshold was crossedBack to top

Arithmetic dictates that if the EU is only counted as 28 members, then one more non-EU country has to ratify an amendment for the number to reach the needed two thirds

The methods for counting the WTO’s membership are bizarre. They are discussed in more detail here and here.

Trade Facilitation Agreement ratifications reached 112, the final four submitted together, on February 22, 2017.

The situation for the pharmaceutical patent amendment depended on how the EU was counted.

The EU is 29 WTO members: the 28 member states plus the EU itself, and for this amendment the WTO is counting the EU as 29, meaning 107 had ratified by early Januay 2017, and three more were needed. However, for reasons that are unclear, the EU says it should only be counted as 28, meaning 106 had ratified and four more were needed.

The ambiguity was dodged on January 23, 2017 when the WTO announced that five more members had ratified, taking the total to 112 — or 111 if you prefer — in one go. (By then, 83 non-EU members had ratified it.)

Dodged it might have been, but the problem remains. The arithmetic dictates that if the EU is only counted as 28 members instead of 29, then one more WTO member that is not in the EU has to ratify an amendment for the number to reach the needed two thirds.

(Note that after Russia ratified the amendment on September 22, 2017, the WTO website said Russia was the 118th member to ratify. Here the WTO website was using the WTO’s full membership count, with the EU as 29.)

The situation is clearer but unexplained for trade facilitation. A footnote in the agreement says the EU will count as 28 (the same number as its member states). No explanation has been given for this, and so far the EU’s only explanation for counting itself as 28 for the pharmaceutical patent amendment is to cite trade facilitation, even though the Bali deal came six years after the EU ratified the patent amendment.

Want to know more?

And finally, some really long lists

Pharmaceutical patent amendmentBack to top

Map of Par.6 acceptances
Click the imgage to see it full size. Source: WTO

Who has not yet ratified the pharmaceutical patent amendment?Back to top
The amendment won’t apply to any country on this list until it ratifies

  1. Afghanistan
  2. Angola
  3. Antigua and Barbuda
  4. Armenia
  5. Barbados
  6. Burundi
  7. Cabo Verde
  8. Cameroon
  9. Chad
  10. Côte d’Ivoire
  11. Cuba
  12. Congo, Dem Rep
  13. Ecuador
  14. The Gambia
  15. Georgia
  16. Ghana
  17. Guatemala
  18. Guinea
  19. Guinea-Bissau
  20. Guyana
  21. Haiti
  22. Jamaica
  23. Kazakhstan
  24. Kuwait
  25. Liberia
  26. Maldives
  27. Mauritania
  28. Mozambique
  29. Namibia
  30. Nigeria
  31. Paraguay
  32. Solomon Islands
  33. Suriname
  34. Swaziland
  35. Tonga
  36. Tunisia
  37. Vanuatu
  38. Venezuela
  39. Yemen
  40. Zimbabwe

Who has ratified the pharmaceutical patent amendment?Back to top
(Counting the EU as 29. The WTO’s list is here)

  1. United States 17 December 2005
  2. Switzerland 13 September 2006
  3. El Salvador 19 September 2006
  4. Korea, Rep 24 January 2007
  5. Norway 5 February 2007
  6. India 26 March 2007
  7. Philippines 30 March 2007
  8. Israel 10 August 2007
  9. Japan 31 August 2007
  10. Australia 12 September 2007
  11. Singapore 28 September 2007
  12. Hong Kong, China 27 November 2007
  13. China 28 November 2007
  14. Austria 30 November 2007
  15. Belgium 30 November 2007
  16. Bulgaria 30 November 2007
  17. Cyprus 30 November 2007
  18. Czech Republic 30 November 2007
  19. Denmark 30 November 2007
  20. Estonia 30 November 2007
  21. EUROPEAN UNION 30 November 2007
  22. Finland 30 November 2007
  23. France 30 November 2007
  24. Germany 30 November 2007
  25. Greece 30 November 2007
  26. Hungary 30 November 2007
  27. Ireland 30 November 2007
  28. Italy 30 November 2007
  29. Latvia 30 November 2007
  30. Lithuania 30 November 2007
  31. Luxembourg 30 November 2007
  32. Malta 30 November 2007
  33. Netherlands 30 November 2007
  34. Poland 30 November 2007
  35. Portugal 30 November 2007
  36. Romania 30 November 2007
  37. Slovak Republic 30 November 2007
  38. Slovenia 30 November 2007
  39. Spain 30 November 2007
  40. Sweden 30 November 2007
  41. United Kingdom 30 November 2007
  42. Mauritius 16 April 2008
  43. Egypt 18 April 2008
  44. Mexico 23 May 2008
  45. Jordan 6 August 2008
  46. Brazil 13 November 2008
  47. Morocco 2 December 2008
  48. Albania 28 January 2009
  49. Canada 16 June 2009
  50. Macao, China 16 June 2009
  51. Bahrain 4 August 2009
  52. Colombia 7 August 2009
  53. Zambia 10 August 2009
  54. Nicaragua 25 January 2010
  55. Pakistan 8 February 2010
  56. Macedonia (FYROM) 16 March 2010
  57. Uganda 12 July 2010
  58. Mongolia 17 September 2010
  59. Croatia 6 December 2010
  60. Senegal 18 January 2011
  61. Bangladesh 15 March 2011
  62. Argentina 20 October 2011
  63. Indonesia 20 October 2011
  64. New Zealand 21 October 2011
  65. Cambodia 1 November 2011
  66. Panama 24 November 2011
  67. Costa Rica 8 December 2011
  68. Rwanda 12 December 2011
  69. Honduras 16 December 2011
  70. Togo 13 March 2012
  71. Saudi Arabia 29 May 2012
  72. Chinese Taipei 31 July 2012
  73. Dominican Republic 23 May 2013
  74. Chile 26 July 2013
  75. Montenegro 9 September 2013
  76. Trinidad and Tobago 19 September 2013
  77. Central African Republic 13 January 2014
  78. Turkey 14 May 2014
  79. Botswana 18 June 2014
  80. Uruguay 31 July 2014
  81. Brunei Darussalam 10 April 2015
  82. Moldova, Repf 7 July 2015
  83. Kenya 21 July 2015
  84. Saint Kitts and Nevis 27 July 2015
  85. Sri Lanka 9 September 2015
  86. Laos 29 September 2015
  87. Iceland 12 October 2015
  88. Grenada 8 December 2015
  89. Malaysia 10 December 2015
  90. Myanmar 16 December 2015
  91. Lesotho 4 January 2016
  92. Mali 20 January 2016
  93. Thailand 28 January 2016
  94. South Africa 23 February 2016
  95. Nepal 11 March 2016
  96. Tanzania 14 March 2016
  97. Ukraine 16 March 2016
  98. Qatar 6 April 2016
  99. Samoa 21 April 2016
  100. Saint Lucia 2 May 2016
  101. Tajikistan 23 May 2016
  102. Seychelles 8 June 2016
  103. Papua New Guinea 22 June 2016
  104. Peru 13 September 2016
  105. Belize 15 September 2016
  106. Benin 23 November 2016
  107. Dominica 28 November 2016
  108. Nigeria 16 January 2017
  109. Burkina Faso 17 January 2017
  110. Liechtenstein 23 January 2017
  111. United Arab Emirates 23 January 2017
  112. Vietnam 23 January 2017
  113. Oman 1 March 2017
  114. Sierra Leone 21 March 2017
  115. Fiji 1 May 2017
  116. St Vincent and the Grenadines 9 May 2017
  117. Malawi 24 July 2017
  118. Russian Federation 22 September 2017
  119. Congo 31 October 2017
  120. Madagascar 9 November 2017
  121. Gabon 23 November 2017
  122. Bolivia 30 January 2018
  123. Kyrgyz Republic 6 February 2018
  124. Guinea 15 February 2018

Trade facilitation amendmentBack to top

Map updated 5.3.2018
Click the image to see it full size

Who has not yet ratified the trade facilitation amendment?
(The amendment won’t apply to any country on this list — including provisions on technical assistance — until it ratifies.)

  1. Angola
  2. Benin
  3. Burkina Faso
  4. Burundi
  5. Cabo Verde
  6. Cameroon
  7. Colombia
  8. Cuba
  9. Congo, Democratic Republic
  10. Ecuador
  11. Egypt
  12. Guinea
  13. Guinea-Bissau
  14. Haiti
  15. Kuwait
  16. Liberia
  17. Maldives
  18. Mauritania
  19. Morocco
  20. Papua New Guinea
  21. Solomon Islands
  22. Suriname
  23. Tajikistan
  24. Tanzania
  25. Tonga
  26. Tunisia
  27. Uganda
  28. Vanuatu
  29. Venezuela
  30. Yemen
  31. Zimbabwe

Who has ratified the trade facilitation amendment?Back to top
(EU represented by its 28 member states. The WTO’s list is here, but the one on the TFA Facility’s pages is kept more up-to-date)

  1. Hong Kong, China 8 December 2014
  2. Singapore 8 January 2015
  3. US 23 January 2015
  4. Mauritius 5 March 2015
  5. Malaysia 26 May 2015
  6. Japan 1 June 2015
  7. Australia 8 June 2015
  8. Botswana 18 June 2015
  9. Trinidad and Tobago 29 July 2015
  10. Korea, Republic of 30 July 2015
  11. Nicaragua 4 August 2015
  12. Niger 6 August 2015
  13. Chinese Taipei 17 August 2015
  14. Belize 2 September 2015
  15. Switzerland 2 September 2015
  16. China 4 September 2015
  17. Liechtenstein 18 September 2015
  18. Laos 29 September 2015
  19. New Zealand 29 September 2015
  20. Togo 1 October 2015
  21. Austria 5 October 2015
  22. Belgium 5 October 2015
  23. Bulgaria 5 October 2015
  24. Croatia 5 October 2015
  25. Cyprus 5 October 2015
  26. Czech Republic 5 October 2015
  27. Denmark 5 October 2015
  28. Estonia 5 October 2015
  29. Finland 5 October 2015
  30. France 5 October 2015
  31. Germany 5 October 2015
  32. Greece 5 October 2015
  33. Hungary 5 October 2015
  34. Ireland 5 October 2015
  35. Italy 5 October 2015
  36. Latvia 5 October 2015
  37. Lithuania 5 October 2015
  38. Luxembourg 5 October 2015
  39. Malta 5 October 2015
  40. Netherlands 5 October 2015
  41. Poland 5 October 2015
  42. Portugal 5 October 2015
  43. Romania 5 October 2015
  44. Slovak Republic 5 October 2015
  45. Slovenia 5 October 2015
  46. Spain 5 October 2015
  47. Sweden 5 October 2015
  48. United Kingdom 5 October 2015
  49. Thailand 5 October 2015
  50. Macedonia (FYROM) 19 October 2015
  51. Pakistan 27 October 2015
  52. Panama 17 November 2015
  53. Guyana 30 November 2015
  54. Côte d‘Ivoire 8 December 2015
  55. Grenada 8 December 2015
  56. Saint Lucia 8 December 2015
  57. Kenya 10 December 2015
  58. Brunei Darussalam 15 December 2015
  59. Viet Nam 15 December 2015
  60. Myanmar 16 December 2015
  61. Norway 16 December 2015
  62. Ukraine 16 December 2015
  63. Zambia 16 December 2015
  64. Georgia 4 January 2016
  65. Lesotho 4 January 2016
  66. Seychelles 11 January 2016
  67. Jamaica 19 January 2016
  68. Mali 20 January 2016
  69. Cambodia 12 February 2016
  70. Paraguay 1 March 2016
  71. Turkey 16 March 2016
  72. Brazil 29 March 2016
  73. Macao, China 11 April 2016
  74. United Arab Emirates 18 April 2016
  75. Samoa 21 April 2016
  76. India 22 April 2016
  77. Russia 22 April 2016
  78. Albania 10 May 2016
  79. Montenegro 16 May 2016
  80. Kazakhstan 26 May 2016
  81. Sri Lanka 31 May 2016
  82. Saint Kitts and Nevis 17 June 2016
  83. Madagascar 20 June 2016
  84. Moldova 24 June 2016
  85. El Salvador 4 July 2016
  86. Honduras 15 July 2016
  87. Mexico 26 July 2016
  88. Peru 28 July 2016
  89. Saudi Arabia 28 July 2016
  90. Afghanistan 29 July 2016
  91. Senegal 24 August 2016
  92. Uruguay 30 August 2016
  93. Bahrain 23 September 2016
  94. Bangladesh 27 September 2016
  95. Philippines 27 October 2016
  96. Iceland 31 October 2016
  97. Chile 21 November 2016
  98. Swaziland 21 November 2016
  99. Dominica 28 November 2016
  100. Mongolia 28 November 2016
  101. Gabon 5 December 2016
  102. Kyrgyz Republic 6 December 2016
  103. Canada 16 December 2016
  104. Ghana 4 January 2017
  105. Mozambique 6 January 2017
  106. St Vincent & the Grenadines 9 January 2017
  107. Nigeria 16 January 2017
  108. Nepal 24 January 2017
  109. Chad 22 February 2017
  110. Jordan 22 February 2017
  111. Oman 22 February 2017
  112. Rwanda 22 February 2017
  113. Dominican Republic 28 February 2017
  114. Guatemala 8 March 2017
  115. Armenia 20 March 2017
  116. Costa Rica 1 May 2017
  117. Fiji 1 May 2017
  118. Sierra Leone 5 May 2017
  119. Qatar 12 June 2017
  120. The Gambia 11 July 2017
  121. Malawi 12 July 2017
  122. Congo 5 October 2017
  123. Antigua and Barbuda 27 November 2017
  124. South Africa 30 November 2017
  125. Indonesia 5 December 2017
  126. Israel 8 December 2017
  127. Central African Republic 11 January 2018
  128. Argentina 22 January 2018
  129. Bolivia 30 January 2018
  130. Barbados 31 January 2018
  131. Namibia 9 February 2018
  132. Djibouti 5 March 2018

• August 24, 2016–March 5, 2018: adding new ratifying countries up to Djibouti in the list of countries accepting the TFA and new ratifying countries up to Guinea for the TRIPS amendment.

• February 22, 2017: some tidying up to make text better reflect both amendments now active
• November 29, 2016: adding screenshot of WTO Agreement art.X.3
• September 13, 2016: deleted remark about the WTO not announcing new ratifications for the TRIPS amendment — on September 13 it did, but only saying that over 63% of members have ratified, without stating how many have ratified and how many more are needed
• August 1, 2016: to correct chart; to clarify that developing countries receive assistance even of they have not ratified; adding links to TFA Facility
• September 30, 2017: adding reference to WTO website counting Russia as 118th member to ratify the patent amendment and implied count of EU as 29

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WTO amendment on access to medicines faces EU conundrum

Only three more ratifications are needed for the WTO’s first ever amendment to take effect. Or is it … FOUR?

Note: The “conundrum” was dodged on January 23, 2017 when five countries were officially announced to have ratified the amendment. The total leapt over the targeted 110 to 112. Now that the target has been reached, this blog post will no longer be updated. But the conundrum remains unresolved. More up-to-date information is available here.

By Peter Ungphakorn

After waiting for over a decade, the World Trade Organization is finally close to achieving the first ever amendment to its rule-book, with only a handful of members still needing to formally accept new intellectual property provisions dealing with one aspect of access to medicines.

Two thirds of the membership (110 of the WTO’s present 164 members) have to ratify or “accept” the amendment (on exporting medicines made under compulsory licence) before it can take effect. The number of accepting members is finally approaching the two thirds. This has exposed a discrepancy in the way the European Union’s membership is counted. And that in turn raises questions over when the 110 is actually reached.

Worse, the counting method the EU uses could even prevent some amendments ever taking effect.

The strange case of the missing EU member

Normally, the EU is counted as 29 WTO members: its 28 member states plus the EU itself. This explains why the WTO’s membership is currently 164.

Counting the EU as 29 would mean that 107 members have accepted the amendment, and only three more are needed to reach 110 — detailed figures below.

The question on Par.6 acceptanceThe WTO and EU were interviewed back in March and early April 2016 (before the latest acceptances were received, and when the WTO had 162 members, requiring 108 acceptances). At that time, the number needed seemed to be 11, a number the WTO confirmed but the EU contradicted.

“We are 11 short of the two thirds we need,” WTO spokesman Keith Rockwell told IP-Watch in March 2016. “We expect Qatar and Tajikistan to ratify [in April] which would then leave us nine short.” (Nine have now ratified since March.)

But the European Commission, which speaks on behalf of the whole EU, has a different count: 28.

“To our best knowledge, the number of votes the EU has according to the WTO agreement corresponds to the number of EU Member States, which is 28,” said Daniel Rosario, the Commission’s spokesperson for trade (note “to our best knowledge” and “votes”).

“Therefore … the TRIPS amendment would at this point be 12 WTO members short of entry into force.” Rosario said at that time.

In this particular case, the discrepancy makes no difference to the real world. The content of the amendment is already in effect through a legal instrument known as a “waiver”, which remains in place until the amendment takes effect. So politically, the WTO may be able to go ahead and celebrate its first ever rule-change without having to worry about the legal niceties.

But the WTO is above all a legal organisation, where getting the rules right in detail does matter tremendously, as can be seen from any official WTO document or dispute ruling. The EU and WTO have had nine years to try to sort out this question — the EU accepted the amendment in 2007. It remains unresolved.


  • Two thirds of WTO members = 110
  • Non-EU members accepting amendment = 78
  • WTO says 3 more non-EU members needed because EU = 29
  • EU says 4 more non-EU members needed because EU = 28

Even if this particular amendment has little impact on the real world, failure to sort out the legal issues could hold up future amendments that will count. One is already in process, on “trade facilitation” (streamlining border procedures).

And for a handful of critically important provisions, all WTO members have to accept an amendment, not just two thirds (Article 10.2 of the WTO Agreement).

In present circumstances, that means 164 acceptances, a figure that can never be reached if the EU is only counted as 28. Something has to give.

The issue: compulsory licensing for export

The 1994 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) contains a number of flexibilities allowing governments to bypass certain patent rights, including for pharmaceuticals.

One is compulsory licensing (or some other means) where the government can decree that generic versions can be made without the permission of the patent owner, provided some conditions are met, such as an attempt at voluntary licensing.

But the agreement also says that for compulsory licensing (or similar action), “any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use” (Article 31(f)). This would normally prevent the generic from being exported to a poorer country. (The original drafters said later that at the time they had underestimated the implications.)

In 2003, WTO members agreed to change the rule so that medicines made under compulsory licence could be exported to countries that are unable to make the medicines themselves. The legal means was a “waiver” — Article 31(f) is waived provided certain conditions are met such as special packaging and distinctive marks for the generics, and notification to the WTO. Specifically, countries following the provisions of the waiver will not be challenged under the WTO’s legal dispute settlement system.

Two years later, WTO members agreed to turn the waiver into an amendment of the TRIPS Agreement. The waiver remains in place until the amendment takes effect, without any need to renew it. The main reason for doing this is to be legally tidy. A waiver deviates from the rules; an amendment is part of the rules.

The one practical benefit is visibility: the waiver cannot be seen among the WTO agreements, whereas an amendment would be included. Other than that, switching from the waiver to the amendment makes no difference at all from the point of view of public health:

  • Access to medicines (the right to export a product under compulsory licence) is identical
  • The requirements for distinctive packaging and marks are identical
  • The notification requirements are identical
  • Protection against legal challenge is also unchanged

(The two are compared unofficially here [pdf])

More than 10 years after the amendment was agreed, it is only now approaching enough acceptances for it to come into force. The slow pace of acceptances should not be seen as a lack of interest in access to medicines because the amendment makes no practical difference. The real intergovernmental work on access to medicines is taking place elsewhere including collaboration between the World Health Organization, World Intellectual Property Organization and WTO.

Rather, it is a lack of commitment to the system and the institution — a failure to follow up on a decision taken many years ago and to ensure multilateral rules are tidied up — which may sound abstract but is at the heart of the WTO’s functions.

Counting members, votes and instruments

The failure to sort out how the EU is counted reflects a similar lack of commitment to the institution. The WTO and EU seem to be basing their versions on different WTO rules.

The WTO’s approach is straightforward. The EU is 29 members out of 164, and that also applies to the number accepting an amendment.


¹ For the purposes of calculation of acceptances under Article X.3 of the WTO Agreement, an instrument of acceptance by the European Union for itself and in respect of its Member States shall be counted as acceptance by a number of members equal to the number of Member States of the European Union which are Members to the WTO

The EU’s method is different, counting itself as 28 WTO members instead of 29. EU spokesman Rosario only cited the Trade Facilitation Agreement which was agreed in 2014 — nine years after the TRIPS amendment — and is set out as an amendment to the package of WTO agreements. Here, a footnote says the EU should be counted as the same number as its member states (28).

Counting the EU as 28 for the TRIPS amendment “is in line with the one recently agreed in another multilateral instrument, the Trade Facilitation Agreement,” Rosario said.

In WTO agreements, the only case where the EU would be counted this way (28) is for voting (Article 9.1 of the WTO Marrakesh Agreement). Presumably this was designed to avoid giving the EU a numerical advantage over countries voting on the opposite side. (Voting has only ever been used once — and some say even that was a mistake — because members prefer decisions by “consensus”, defined as: “if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision” — footnote to the same Article 9.1.)

But the arithmetic of accepting an amendment is different. When the EU is counted this way (28 instead of 29), it is imposing on the WTO membership the need for one additional non-EU member to accept in order to reach two thirds. The rules themselves (Article 10 of the Marrakesh Agreement) do not refer to voting for this purpose, only “acceptance by two thirds of the Members”. (Voting only comes into play explicitly for decisions about amendments.)

Conundrum pull quote 3If the EU is citing some obscure legal principle that accepting or ratifying an amendment is the same as voting, it has not said so openly.

There may be another explanation. When a country accepts a WTO amendment it also has to “deposit an instrument of acceptance” with the WTO. If the EU were to be counted as 29 WTO members, its instrument of acceptance would have to be on behalf of all 29, including the EU itself.

Internal legal problems may be preventing the EU from doing so, perhaps because that would imply the EU itself has jurisdiction over its member states’ intellectual property regimes, a contentious issue. But if that is the case, again, why not come clean?

All we know is what the instrument says: it is attached to the EU in the WTO’s list of acceptances, the only instrument that had to be made available on that list (note that Croatia is listed separately because it accepted before joining the EU).

Citing the “Treaty establishing the European Community”, the instrument’s only reference to the member states is that “the Protocol [amending the TRIPS Agreement] will be binding on the Member States of the European Union.” This sounds more like confirmation of a separate issue: that the amendment will apply to the EU member states, rather than an indication of how many have accepted it — according to the rules, an amendment normally only applies to those countries that have accepted it, not to the rest of the WTO’s membership.

Possible solutions, and an elephant

And yet, if the EU and WTO wanted to resolve this, they could, even without a treaty change. These are some possibilities, bearing in mind that if the EU counts only as the number of its member states then it is forcing one additional non-EU member to accept the amendment in order to reach the needed two thirds:

  • An interpretation by the WTO General Council to clarify how the EU should be counted for accepting amendments. This would be the clearest solution.
  • The EU unilaterally declaring that it will accept whatever count the WTO uses (29 in this case), or that it will always be the number of member states plus the EU itself
  • The EU routinely having a footnote clarifying its number as happened with trade facilitation
  • Making sure that at the end two members accept simultaneously, so that the two thirds figure is always reached no matter which count is used. This would be the messiest solution.

Finally, the elephant in the room. If the EU really has difficulty accepting a “member states plus one” count for the purposes of amendments, it might go so far as to say that in such cases it considers the WTO’s membership also to be all members apart from the EU itself, ie 163 instead of the present 164. This would give the WTO a variable membership count, which many would find difficult to swallow. Besides, there are no provisions in the WTO agreements for taking this route.

PS: countries that have not yet accepted

The following non-EU countries have not yet accepted the amendment. After the two thirds have been reached, the amendment will only apply to those that have accepted.

It will not apply to any remaining on this list:

Afghanistan; Angola; Antigua and Barbuda; Armenia; Barbados; Bolivia; Burkina Faso; Burundi; Cabo Verde; Cameroon; Chad; Congo; Côte d’Ivoire; Cuba; Democratic Republic of the Congo; Djibouti; Ecuador; Fiji; Gabon; The Gambia; Georgia; Ghana; Guatemala; Guinea; Guinea-Bissau; Guyana; Haiti; Jamaica; Kazakhstan; Kuwait; Kyrgyz Republic; Liberia; Liechtenstein; Madagascar; Malawi; Maldives; Mauritania; Mozambique; Namibia; Niger; Nigeria; Oman; Paraguay; Russian Federation; Saint Vincent & the Grenadines; Sierra Leone; Solomon Islands; Suriname; Swaziland; Tonga; Tunisia; United Arab Emirates; Vanuatu; Venezuela; Viet Nam; Yemen; Zimbabwe

The figures

WTO membership = 164Two thirds = 110

Acceptances listed on WTO website (where EU = 1 and Croatia is listed separately) = 80
(78 non-EU + EU + Croatia, which accepted before joining the EU)
Acceptances (EU = 28) = 106 (EU WTO members = 28 member states)
Acceptances (EU = 29) = 107 (EU WTO members = 28 member states + EU)
Still needed = 3 (or 4 according to EU count)

(WTO acceptance data last updated November 30, 2016)

Two WTO amendments in race to be first

Revised from an original analysis on Intellectual Property Watch, April 14, 2016. Reproduced under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence

Updated July 15 and 29, 2016 to reflect the WTO’s increase in membership to 163 on July 14 and to 164 on July 29, 2016; and June 22, 2016–November 30, 2016 to add acceptances by Papua New Guinea, Peru, Belize, Benin, Dominica

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